F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

N A T I O N A L C O U N C I L O F L A R A Z A ; L A S V E G

A S B R A N C H O F T H E NAACP, B ranch 1111; R E N O

S P A R K S B R A N C H O F T H E NAACP, B ranch 1112, Plaintiffs-Appellants

,

v

.

B A R B A R A K. C E G

A V S K E , in her official capacity

as Secretary

of State of the State of Nevada; R I C H A R D W H I T L E Y , in his official capacity as Director of the Department of Health and Human Services of the State of Nevada, Defendants-Appellees

. N o. 13-15077

D.C. No. 3:12-cv-00316- RCJ -VPC

OPI NI ON

A ppeal from the United States District Court for the District of Nevada Robert Clive J ones, District J udg e, Presiding

Arg ued and Submitted March 12, 2015—San F rancisco, California

F iled September 3, 2015N A T ’ L C O U N C I L O F L A R A

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B efore: W illiam A. F letcher and Morg a n Christen, Circuit J udg es, and Rosly

n O. Silver, * Senior District J udg e.

Opinion by

J udg e W

. F letcher

SUMMARY * *

Civil Rights

The panel rev e r s e d the d istrict court’s dismissal o f a complaint broug ht by the N ational Co uncil of L a Raz a a nd the L as Veg a s and Reno-Sparks chapters o f the NAACP alleg ing that Nevada’s Secretary o f State and Director of the Department of Health a

nd H uman Services vi o l a t ed, a nd
cont i n ue to v iolate, Section 7 of the National Voter Reg istration Act of 1993.

Section 7 requires states to distribute voter reg istr a t i on mate r ials a

nd to make assistance available to people w ho visit, a nd make certain requests o f, public assistance offices. Plaintiffs alleg ed tha t Nevada’s failure to comply with Section 7 o f the Act caused them to ex pend additional
resources, and that “but for” th e State’s failure they would hav e s p en t these resources to accomplish other aspects o f their org aniz ational missions, such a s voter education a nd
reg istering voters n ot covered by the Act. The district co u rt

* T h e H o n o rab le Ro s l y

n O. Silv er, S en io r District J u d g e f or th e U .S. District Co u

rt f o r th e District o f

A rizo n a, sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.N A T ’ L C O U N C I L O F L A R A

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d i smissed the complaint for lack of Article I I I and statut o r y standing

.

The panel held that plain t i f fs satisfied the standing requirement of Article I I I by plausibly alleg ing they suffered injury in fact fairly traceable to the State’s nonco m p liance with Section 7 of the Act. The panel also held that plaintiffs satisf i e d statutory standing in two way s. F irst, they notified the State tha t violations were occurring 120 day s before an election, thus authoriz ing them to file suit after waiti n g 20 da y s from the date of their notification. Second, they plausibly alleg ed that the State was violating Section 7 within 30 day s of a federal election, thus permitting them to file suit without first notify ing the State (even thoug h plaintiffs in fact had d one so). The panel re m a n d e d the matter for f urther proceeding s consistent with its opinion and instructed the Chief J udg e of the District o f Nevada to assig n the c ase to a different district judg e.

COUNSEL

Sarah E. B rannon, Project Vote, W ashing ton, D.C.; N e i l A

. Steiner (arg

ued), D echert L L P, New York, New York; L isa J oy Danetz
, D ç mos: A Network f or I deas and Action, New York, New York; Rob e r t K eng le and J on M. Greenbaum, L awy e rs’ Committee for Civil R i ghts Under L aw, W a shing ton, D.C.; W. Chris W icker, W o odburn and W edg e , Reno, Nevada, for Plaintiffs-Appellants.

Catherine Cortez Masto, A ttorn ey G e neral, and K. Kevin B enson (arg

ued), Senior Deputy Attorney General, Nevada Office of the Attorney

General, Carson City

, Nevada, for Defendants-Appellees.N A T ’ L C O U N C I L O F L A R A

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OP INION

W

. F L ETCHER, Circuit J udg e:

The plaintiffs in this case a r e t hree civil rig hts
org aniz ations, National Council o f L a Raz a ( “NCL R”) a nd the L as Veg a s and Reno-Sparks chapters o f the NAACP (collectively

, “Plaintiffs”). T h ey appeal the dismissal with prejudice of their complaint

, w h ich alleg es that Nevada’s Secretary of State and D irector of the Department of Health and H uman Services (collectively

, “Nevada” or “ t h e State”) have violated, and co n t inue to violate, Section 7 of the National Voter Reg istration Act of 1993 (“NVRA”). Section 7 requires states to distribute voter reg istration materials a nd
to make assistance available to people who v i sit, and make certain requests of, public assistance o ffices. W e must decide whether P l a i n tiffs have Article I I I and statutory standing to bring suit. W e hold that they do and re v erse the district court’s dismissal of their complaint.

I . F acts and Procedural B ackg round

A. The NVRA

Section 7 of the NVRA is part of a c o mprehensive statute desig ned to facilitate voter reg istration. The section seeks to increase reg istration of “the poor and persons with d isabilities who do not h a v e driver’s licenses and will not come into contact with the other princip[ al] place to reg ister under this Act[
, motor vehicle ag encies] .” H.R. Rep. No. 103-66, a t 19 (1993), reprinted in 1993 U.S.C.C.A.N. 1 40, 144. T o accomplish this g oal, Section 7 requires s tates to desig nate public assistance offices as voter reg istration ag en c i e s

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52 U.S.C. § 2 0506(a)(2)(A). 1 Voter reg istration ag encies a re required to “distribute” v oter reg istration applica t ion f orms with each application f

o r assistance. They a r e also r equired
to “ ma[ k] e available” ass i s t a nce in filling out voter

r e g istration a

pplication f

orms to a ny p erson who applies f

o r public assistance or seeks recertification, renewal, o r chang e of address, unless that person declines in writ i n g t o r eg ister
to vote. Id

. § 2 0 5 0 6 (a)(4)(A)(i)–(iii),(a)(6). Nevada law implementing the NVRA furthe r o blig ates public assistance offices to p o st in c onspicuous places sig ns informing their clients that they can reg ister to vote and instructing them h ow to do so. See Nev. Rev. Stat. § 293.504; Nev. Admin. Code § 293.410.

The NVRA creates a pri v at e rig ht of action for “[ a]
person who is ag g rieved by a violation of [ the NVRA]

. ” 52 U.S.C. § 20510(b); see also 138 Cong

. Rec. 10,736 (1992) (statement of Sen. W endell F ord) (ex plaining t h a t the lang uag e providing for a private cause o f actio n substituted “person” for “individual” to “permit org a niz ations as well a s individuals, and the Attorney General to bring actions under the act”). The statute includes a notice p rovision that requires

an ag g rieved p erson, in most circumstances, to notify state officials of possible violations of the statute before filing suit. See 52 U.S.C. § 2 0510(b)(1). W hether the ag g rieved person is required to g ive notice and h ow long the person must w ait
t o f i l e suit after g iving notice depends on the timing of t h e

nex t federal election. When the violation upon which a suit is based occurs a substantial time before the nex t federal election, t h e ag g rieved p erson must notify the state of the alleg ed violation a

nd must then w ait 90 day s before filing

1 T h e NVRA w as co d i fi e d at th e tim e o f th e co m p lain t at 4 2 U.S.C. § 1 9 7 3g g . It is n o w

co dif ied at 5 2 U.S.C. § § 2 0 5 0 6

– 20 5 1 1

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suit. I d

. § 2 0510(b ) (1)–(2). However, “if the violation occurred w ithin 1 20 day s” of a federal election, the ag g rieved
person must wait only 20 day s after notify ing the state before bring ing sui t

. Id

. § 2 0510(b)(2). “I f the violation occurred within 30 day s” of a federal election, the ag g rieved person does not need to g ive a ny n otice before bring ing suit. Id

. § 20510(b)(3).

B . The Notice L etter

On May 10, 2 0 12—t h irty -three d ay s before a federal primary election—Plaintiffs sent a letter to Nevada’s Secretary of State a lerting him that, in the view of Plaintiffs, the State was violating the public a ssistance provisions o f Section 7. The letter stated that “Nevada is not in compliance with Section 7 ” an d “ is sy stematically f a iling to provide the
voter reg istration services mand a t ed by the NVRA at its public assistance offices.”

The letter provided substantial e vidence in support of its alleg ations. F irst, it cited data from t h e U .S. Election Assistance Commission. The d ata showed that the number o f
voter reg istration applications sub m i tted to Nevada public assistance offices “decreased precipitously ” —by 95% f r o m 2001–2002’s hig h p oint to 2009–2010’s low point—despite

a four-fold increase in the number of food stamp applications during this p e riod. Second, the letter cited U

. S. Census B u r e a u d ata from 2010, w hich showed that only 47.6% o f low-income Ne v a dans were reg istered to vote, compared to 72.4% of hig h-income Nevadans. Third, the letter presented the r e s u l t s of field investig ations Plaintiffs conducted in December 2011, approx imately five months before they sent the letter. Plaintiffs’ investig ator s v isited Nevada public assistance offices and survey ed the clients and c lerks of thoseN A T ’ L C O U N C I L O F L A R A

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offices. They

discovered that clerks in seven of nine offices they visi t e d p r o vided voter reg istration application forms only
to people who affirmatively requested them. Office staff indicated that this was “standard pro c e d ure.” Of the c lients
survey e d, o nl y one out o f the five who affirmatively requested a voter reg istration application form received one. Two of the nine offices did not have v o t e r reg istration application forms at all. Only nine out of the 51 c lients
survey e d received v oter reg istration application forms with their benefits applications or other forms. Only two of n ine sites display e d the notifications required by state law.

B a sed on this evidence, the letter concluded that Nevada is not comply ing with the NVRA and informed the Secretary of State that unless the State took corrective action, Plaintiffs

wo u l d “ h ave no alternative but to initiate litig ation a t the conclusion of the statutory 20-day waiting period.”

C. The Complaint

On J u n e 1 1, 2012—thirty -two day s after Plaintiffs sent their notice letter and one day b e f o r e the impending federal primary election—Plaintiffs filed a complaint in district court seeking declaratory and injunctive relief. The complaint alleg es that “Defendants have violated, and unless enjoined will c ontinue to violate, Section 7 of the NVRA.” I t alleg e s further that “widespread ong oing noncompliance” with, and “sy stemic violations” of, Section 7 are “caused b y f lawed practices and policies, insufficient oversig h t and inadequate enforcement.” The complaint alleg e s specifically that “[ t] he violations of the NVRA described in the notice letter have not been remedied.” I n support of its alleg ations, the complaint repeats the evidence previously laid out in the notice letter.N A T ’ L C O U N C I L O F L A R A

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The complaint describes plain t i ff NCL R as “the larg e st national L atino civil rig hts and advocacy org aniz ation in the United States.” According to the complaint,

NCL R reg ularly h as c onducted and continues
to conduct voter reg istratio n drives in the State o f N ev a d a

. . . . NCL R conducts voter reg istration activities in two way s. The first is throug h attending c ommunity events such a s music festivals, sporting events, cultural fairs and n ational holiday s and r e gistering people

as they cong reg ate in c rowds. NCL R also
reg isters people to vote g oing d oor-to-door

. . . .

The complaint alleg es that Nevada’s violat i o n o f Section 7 has caused NCL R to e x p en d a dditional resources in performing its voter reg istration mission: “Due to defendants’
ong oing violations of the NVRA, NCL R h as e x pended additional resources, including staff and v o l unteer time, on efforts to assist individuals with voter reg istration (including updating prior voter reg istration) who should have been offered voter reg istration throug h Nevada’s public assistance offices.”

The complaint describes plaintiffs L as Veg as NAACP and Reno-Sparks N AACP as org aniz ations that “seek [ ] to achieve equality o f rig hts in an d around” L as Veg a s a nd Reno-Sparks. According to th e c omplaint, these plaintiffs “especially e ncourag e[ ] part i c i pation in federal and state elections by traditionally underrepresented g roups.” B oth o f these p laintiffs alleg e that Nevada’s violation of Section 7 has caused them to ex pend add itional resources in p erformingN A T ’ L C O U N C I L O F L A R A

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their voter reg istration missions. The complaint alleg es a s to plaintiff L as Veg as NAACP,

I f p ublic assistance o ffices throug hout Neva da

were comply ing w ith the requirements o f th e NVRA, the L as Veg as NAACP would ex p e nd fewer r esources on voter reg istration drives in

c o m m u n i t i e s w h e r e D H H S [ N e v a d a Depar t ment of Health & Human Services]

c lients should be offered voter reg istration opportunities at DHHS o ffices. B ut for defendants ’ violations of Section 7 of the NVRA, the L as Veg as N AACP would be able
to allocate substantial resources to other activities central to its mission.

The c omplaint alleg es the same thing as t o p laintiff RenoSparks NAACP.

I n addition, the c omplaint alleg es that i n d i v i d ual members of plaintiffs L a s Veg as and Reno-Sparks NAACP have been and will be harmed b y Nevada ’ s f a i lure to comply with Section 7 because their members “have not been and will not be offered the opportunity to reg ister to vote throug h DHHS offices.” Such members inc l u d e those “ who are not reg istered to vote and members who a r e reg istered to vote but have moved or will move and thus have an intere s t in promptly receiving information a nd assistance reg arding chang ing their voter reg istration to match their new address.” The complaint does not identify the members by

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D. Answer and Motion to Dismiss

The State filed an answer and a motion to dismiss on J u ne 3, 2 012. I n its answer, the State denied that the district court had subject matter jurisdiction. I n its motion to dismiss, the State contended that Plaintiffs d id n ot comply with the notice provision of Section 7 because the alleg e d violation s described in the complaint occurred in D ecember 2011, when Plaintiffs c onducted their field investig ations. The State contended that because the violations were discovered more than 120 day s before the feder al primary election in J u ne 2012, Plaintiffs were oblig a ted to g ive the State 9 0 instead o f 20 day s to respond to their letter before filing suit.

E. Preliminary

I n junction and Plaintiffs’ Opposition to Motion to Dismiss

Plaintiffs moved for a preliminary i n junction on J uly 6, 2 0 1 2
, and submitted a memorandum opposing the State’s motion to dismiss two weeks later. Plaintiffs attached both to their m o t ion and to their memorandum declarations from individuals who a

re elig ible to vote, who visite d p u b l ic assistance offices o n J une 1 9 a n d 20, 2012 (after Plaintiffs filed their c o m plaint), and who were not g iven the opportunity to reg ister to vote. Plaintiffs also attached to the memorandum policy manuals from the Nevada Department of Health and Human Services in s t ructing public assistance clerks to interpret an applicant’s f a ilure to fill out the voter reg istration section of a benefits application as a d eclination
to reg ister to vote. Plaintiffs asked the district court to g rant lea ve to amend their complaint to a dd alleg ations a nd supporting declarations of more recent violations if the court believed the complaint warranted dismissal without them.N A T ’ L C O U N C I L O F L A R A

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The district court scheduled a hearing on the State ’s

m o t i o n to dismiss and Plaintiffs’ motion for a prelimina r y injunction for October 9, 2 012. This date was three day s a fter the deadline to reg ister to v o te in the November 2012 g eneral election.

F

. Pro Hac Vice Applications

I n Aug ust 201 2
, e i g h t a

ttorney s representing Plaintiffs pro bono filed applications with the district court to practice pro hac vice in Nev a d a. The State did not oppose the applications. Despite the State’s failure to oppose, the district judg e scheduled a h earing on the a p plications. At the hearing

, the district judg e indicated that he had not read the complaint and that he intended to deny six of the a pplications. He remarked that he was “ n ot oblig ated to admit pro hac vice

a lot of New York lawy ers who in essence are representing their own interests, their o wn law f irms’ interests, rather than

even the plaintiff that they represent.” He observed that Mr. W icker, the Nevada lawy er who was representing Plaintiffs,

was “very competent.” Mr. W icker sai d that he appreciated the compliment, but responded,

I have never pursued o ne of these Voter Reg istration A ct cases, and I think that the public interest g r oups

. . . have pooled their

resources to pursue these cases nat ionwide.

. . . [ I ]t is a specializ e d area where I think the help o f these public interest a g e n c i es a nd national counsel, Mr. S t e i n e r

. . . , are very important to represent the rig hts of the plaintiffs in this matter.N A T ’ L C O U N C I L O F L A R A

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T h e d istrict judg e responded that lawy ers n o t admitted pr o hac vice could help w rite b riefs. Mr. Stein e r ex p ressed

concern that if an associate from his office who had not been admitted pro hac vice took a deposition that would “put u s at risk of violating Nevada u n au thoriz ed practice rules.” The judg e responded, “That’s true.”

At the end of the hearing the district judg e announced his intention to gr ant petitions for admission p ro h a c vice for only two a t t o rney s—one for NCL R and one for the two NA ACP c hapters—and g ave the Plaintiffs a week to decide
among themselves w h i c h attorney s to put forward. A week later, Plaintiffs mov e d for r econsideration of the eig ht applications or, alternative l y , for approval of two attorney s chosen by Plaintiffs. So far as the record shows, the district court did not rule on this motion.

G. Dismissal with Prejudice

On Aug ust 29, 2012, the parties filed s t i p u lations in the district court under which the State withdrew its motion to dismiss and Plaintiffs withdrew their motion for a preliminary injunction. The district judg e the n v a cated the scheduled hearing on the motions. I n December 2 012, without referring
to the parti e s ’ stipulations, the district judg e g ranted with prejudice Nevada’s withdrawn motion to dismiss and denied

a s moot Plaintiffs’ withdrawn motion for a prelim i n a r y injunction. The judg e g ave two reasons for the dismissal.

F irst, the district judg e held sua sponte that Pl a i n tiffs lacked standing under Article I I I

. He concluded that Plaintiffs lacked org aniz ational standing because they had not shown that they suffered a n i njury fairly traceable to the State. Second, the d istrict judg e h eld that Plainti f f s l ackedN A T ’ L C O U N C I L O F L A R A

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statutory standing because they complained of violations that they knew about in December 2 011, when they discovered them in the course of their f ield investig ations. He concluded that since these viola t i o n s occurred more than 120 day s before the then-pending fe d e ral primary election in J une, Plaintiffs were require d to g ive the State 90 day s to respond before filing suit. The district judg e rejecte d P l a i ntiffs’ alleg ation that the violations—which were a lleg ed to be
sy stematic and ong oing

— were sti ll o ccurring on May 10, when Plaintiffs sent their n otice letter statin g t h a t the State

was then violat i n g t he NVRA, as well a s on J une 1 1, when Plaintiffs filed their complain t a l leg ing the same thing

. According to the district judg e , Pl a i n t i ffs’ d ecision to send the notice letter w ithin 120 day s of a federal election was d ue to an “ulterior motive.” I t was a “t ac t i c[ ] o f delay ing ” that “violates the purpose of the NVRA’s notice provision; which is to provide notice of violations long before election day so the state can investig a te a nd cure them without the delay a nd

ex p ense of litig ation.”

Despite h o l d ing that Plaintiffs lacked Article I I I a nd statutory standing

, the district j u dg e w ent on, in dictum, to discuss “for the r ecord” the merits of Plaintiffs’ motion for a preliminary injunction. The judg e c oncluded that, assuming standing

, Pl ai ntiffs had not plausibly alleg ed that the State

was eng ag ed in ong oing violation s o f Section 7 a t the time they filed their complaint.

Plaintiffs timely

appealed the dismissal.

I I . Standard of Review

W e review de novo a district judg e’s dismissal for lack o f Article I I I a

nd statutory standi n g, presuming that all factsN A T ’ L C O U N C I L O F L A R A

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alleg ed in the complaint are true. V a ugh n v. Bay Envtl. Mgmt., Inc ., 567 F .3d 1021, 1024 (9th Cir. 2009).

I I I

. Discussion

A. Article I I I Standing

W e disagr e e with the district court’s conclusion that Plaintiffs lack A rticle I I I standing

. The sta n d i ng requiremen t s o f Article I I I are familiar. A plaintiff must show that (1) he or she has s u ffered a “ concrete a nd particulariz ed” injury to a cog niz able int e r e s t , (2) which is “fairly traceable t o the challeng ed action of the defendant” and (3) w hich likely can be redressed by a favorable decision. Bennett v. S

pear , 520 U.S. 154, 167 ( 1997); see also Lujan v

. Defenders o

f W ildlife

, 504 U.S. 555, 560–61 (1992). I n deciding whether a plaintiff has m a d e this showing

, we “accept as true all material alleg ations of the complaint” a nd “construe the complaint in favor of the co mplaining p arty

. ” Maya v. Centex Corp.
, 658 F .3d 1 0 60, 10 6 8 ( 9 t h Cir. 2 011) (quoting W

arth v. Seldin , 422 U.S. 490, 501 (1975)).

All three plaintiffs alleg e that N evada’s failure to comply with Section 7 o f the NVRA has caused them to ex pend additional resources, and that “but f or” the State’s f

ailure they would have spent these resources to accomplish other aspects of their org aniz ational missions, such as voter education a nd
reg istering voters not covered by the NVRA. Th e d istrict j u d g e concluded that this was not a sufficient alleg ation o f injury i n f

a ct and causation. I n his v iew, Plaintiffs f ailed to alleg e that Nevada’s failure to comply with Sectio n 7 h ad chang ed their behavior in any way

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As to plaintiff NCL R, the d istrict judg e noted that “Plaintiff NCL R claims it h as ex pended additional resources, including staff and volunteer time, on efforts t o assist individuals with voter reg istration.” Despite his recog nition that plaintiff NCL R alleg ed in the complaint that it h a d

ex p ended a dditional re s o u r ces, the district judg e concluded that it had not chang ed its behavior. He wrote,

B e cause r eg istering Hispa n i c A m e r ican voters is an admitted tenet of NCL R, a nd it reg ularly has c onducte d v o t e r r e g i stration drives, NCL R has fail e d [ to] show any “concrete a nd particulariz ed” facts that they have conducted

a n y voter reg istration drives other than w h at they wo u l d have d one had Nevada been in compliance with the NVRA.

As to plaintiffs L as Veg a s and Reno-Sparks NAACP, the district judg e noted that, like plaintiff N CL R, t h e y alleg ed that they ex pended ex tra resources regi s t e r ing voters as a result of Nevada’s alleg ed failure to comply w ith Section 7. He nevertheless concluded that the two NCAAP c hapters h ad failed to alleg e that they had chan g e d their behavior. He wrote,

I t is plausible that [the] NAACP b r a nches have suffered h arm of having to foc u s t heir drives in low-income c o m m u nities if they would have otherwi se focused elsewhere, which they claim. However, they sta t e that low-income communities have been the focus of their “numerous” drives during the past three y ears. I t appears, based o n [ t h e] NAACPs’ own declarations, they were doingN A T ’ L C O U N C I L O F L A R A

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b u siness as usual; whether Nevada was i n compliance or not.

The district judg e’s conclusion that Plaintiffs lack Article I I I standing because they did not chang e their behavi o r i s based on a misreading o f the com p l a i n t

. The complaint, portions of which we h a v e quoted above, clearly alleg es that Plaintiffs chang ed their be h avior as a result of Nevada’s alleg ed viola t i o n o f Section 7. The c o mplaint specifically alleg es that Plaintiffs ex pended additional resources that they would not o ther w i s e h ave ex p ended, and in way s that they would not have ex p ended them. F o r ex ample, the complaint alleg es that plaintiff NCL R “ e x pended a dditio n a l resources

. . . on efforts to assist individuals with voter reg istration

. . . who should have been offered voter reg istration throug h Nevada’s publi c a s s i stance offices.” I t further alleg es that plaintiffs L as Veg as and Reno NAACP would spend “fewer

resources on voter reg istration drives in com munities where DHHS c lients should be offered voter reg istration opportunities at DHHS offices. B ut f o r defendants’ violations of Section 7,” Plaintiffs “would be able to allocate substantial resources to o ther a ctivities central to [ their] mission[ s] .”

The Supreme Court has made clear that injuries o f the sort that Plaintiffs alleg e a

re concrete and particular for purposes of Article I I I

. See H

avens Realty Corp. v

. Coleman

, 455 U.S. 363, 379 (1982) (“Such concrete and demonstrable injury to the o rg aniz ation’s activities—with the consequent drain on the org aniz ation ’s resources—constitutes far more than simply a setback to the org a niz ation’s abstract social interests

. . . .” )

. T h e Court h as also made c lear that a diversion-ofresources injury is suffi ci ent to establish o rg aniz ational standing at the pleading stag e, e ven when it is “ broadlyN A T ’ L C O U N C I L O F L A R A

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alleg ed.” Id. at 379 (“I f

, as broadly alleg ed, [ defendant s ’ ] steering pra ctices have perceptibly impaired [ p laintiff
org aniz ation’s] a

bility to provide c o unseling and r efer ra l services for low- and moderate-income homeseekers, there

can be no question that the org aniz ation has suffered injury in fact.”); see also Lujan
, 504 U.S. at 561 (“At the pl ea d i n g stag e, g eneral factual alleg ations of injury resulting from the defendant’s conduct may

suffice, for on a motion to dismiss

we presum[ e] that g eneral alleg a tions embrace those specific facts that are necessary to s u p p ort the c laim.” (internal quotation marks omitted)).

Resources Plaintiffs put toward reg istering someone w ho would likely have been reg istered by the State, h ad it complied with the NV R A, a r e resources they would have spent on some other aspect of their org a ni z a t i o nal purpose—such as reg istering v oters the NVRA’s provisions do not rea c h

, increasing their v oter education efforts, or any other activity that advances their g oal s

. C o n trary to the district judg e’s view, Plaintiffs have not alleg ed that they a re simply g oing about their “business a s u sual,” unaffected b y the State’s conduct. See F air Hous. Council o

f San Fernando Valley v. Roommate.com, LLC
, 666 F .3d 1216, 1219 ( 9th Cir. 2012) ( holding that pl a i n t iff org aniz ations have standing to

sue to stop a r oommate-m a t c h i n g w e b s ite from discriminating beca u se they undertook a campaig n ag ainst discriminatory
roommate advertising

, even thoug h their ordina ry business includes investig ating and rai s i n g awareness a bout housing discrimination). W e have no difficul t y c oncluding that Plaintiffs have adequately a l leg ed that the injury they suffer is attributable to the State. See, e.g. , Georg i a State Conference of NAACP v. Kemp
, 841 F

. Supp. 2d 1320, 1336 (N.D. G a. 2 012) (finding that p laintiff’s alleg ations that it

ex p ended resources, which it wo u l d have used on otherN A T ’ L C O U N C I L O F L A R A

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projects, to reg i s ter people who should have been reg istered by the state “plainly satisfy the injury prong of the Article I I I
test for standing ”); Nat’l Coal. for Students with Disabilities Educ. & Legal Def. Fund v. Scales

, 1 50 F

. Supp. 2d 8 45, 850 (D. Md. 2001) (finding that “the a l l e g ations that the [ defendant ] ’s noncompliance frustrates these g o als a nd requires the orga niz a tion to ex pend resources in facilitating the reg istration of disabled p ersons that they otherwise would spend in other way s is sufficie n t to show an actual o r threatened injury in f

act that is fairly

traceable to the alleg ed illeg al action and is likely to be redressed by a favorable court decision ordering

injunctive relief”).

The complain t also alleg es that members of the two NAACP chapters suff

er e d i njury as a result of Nevada’s failure to comply with Section 7. Citing S u m m e r s v. Earth Island Institute
, 5 55 U.S. 488 (2009), the district judg e h eld that the chapters’ members “ must be specifically identified” i n o rder for the chapters to satisfy Article I I I standing

. W e

are not co nvinced that Summers
, an environmental case broug ht under the N ational Environmental Policy Act, stands for the proposition that an injured member of an org aniz ation
must alway s be specifically identified in order to establish Article I I I standing for the o rg aniz ation. The Summers Court refused to find s t a n d i n g based only on speculation that unidentified members would b e injured by a p roposed action of the National F orest Service. Id. at 498–99. W here it is relatively clear, rather than merely speculative, th at o n e o r

more members have been or will be adversely affected by a defendant’s action, a

nd where the defendant need n ot know the identity of a particular member to understand and respond
to an org aniz ation’s claim of injury

, we see no purpose to be

s e rved b y requiring an org aniz ation to identify b y name the member or members injured.N A T ’ L C O U N C I L O F L A R A

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However, even if S

umm ers and other cases are r ead to require that an org aniz ation alw a y s identify by name individual members who have been or will be injured in order
to satisfy A rticle I I I
, the d istrict judg e erred in dismissing the complaint w ithout g ranting leave to amend. The State ag rees that leave to amend should have b een g ranted. Plaintiffs h ad

s p e c ifically requested ( thoug h such a request was no t necessary ) permission to amend if their complaint wa s h eld insufficient. I t is b lac k -l e tter law that a district court must g ive plainti f

f s a t least one chance to amend a deficient complaint, a

bsent a clear showing that amendment would be futile. Eminence C

a pital, LLC v. Aspeon, Inc.
, 316 F .3d 1048, 1 052 ( 9 th Cir. 2003) (“Dis m i s s a l with prejudice a nd without leave to amend is n ot appropriate unless it is clear on de novo r eview that th e c o mplaint could not b e saved b y amendment.”); see also F o man v

. D avis
, 371 U .S. 178, 182 (1962) (“In the a

bsence of any apparent or declared reason—such as undue delay

, bad faith or dilatory motive on the p a rt of the movant, repeated failure to cure deficiencies b y amendments previously a llowed, u ndue prejudice to the

o p p o sing party by virtue o f allowance of the a mendme n t , futility o f a mendment, etc.—the l ea v e soug ht should, as the [ F ederal Rules of Civil Procedure] require, b e ‘freely
g iven.’”). The Supreme Court h as recently confirmed ( t h o u g h such confirmation w as hardly n eeded) that a membership org aniz ation should have the opportunity to provide evidence that bolsters its claim of associational standing w hen t h e org a

n iz ation reasonably believes, “in the absence of a s t ate challeng e or a court request for more detailed i n f

o r mation,” that “it need not provide additional information such as a specific membership list.” A l a b a ma Legislative Black Caucus v

. Alabama

, 135 S. Ct. 1 257, 1269 (2015).N A T ’ L C O U N C I L O F L A R A

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B . Statutory Standing

As a threshold matter, Plaintif f s contend that the district judg e abused his discretion by g ranting

, sua sponte , Nevada’s withdrawn motion to dism iss on the g r ound that Plaintiffs lack statutory standing

. Such an action by the district court, it hardly needs say ing

, wa s unusual. However, because we conclude on the merits that the district court erred in dismissing the c omplaint, we n eed n ot address Plaintiffs’ contention b ey ond noting the unusual n ature of the district judg e’s action.

I n relevant part, the notice provision of the N V R A provides:

(b) Private rig ht of action

(1) A p ers o n w ho is ag g r ieved by a violation of this chapter may pr o v i de w ritten notice of the violation to the chief election official of the State involved.

(2) I f the violation is not corrected within 90 day s after receipt of a notice under
parag raph (1), or within 20 day s after receip t of the n otice if the v i o l a tion occurred within 120 d ay s before the date of a n elec t i o n f

o r F ederal office, the aggrieved person may bring a civil action in an a ppropriat e district
court for d eclaratory or injunctive relief with respect to the violation.

(3) I f the v iolation occurred within 30 day s before the date of an e lection for F ederalN A T ’ L C O U N C I L O F L A R A

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office, the a g g rieved person need not provide notice to the chief election o fficial of the State under parag raph (1) before bring ing a civil action under parag

raph (2).

52 U.S.C. § 20510(b).

The district judg e held that Plaintiffs di d not provide timely notice under the NVRA and therefore lacked standing under the statute. The State makes two arg uments seeking to justify the dismissal for lack of statutory standing

. F irst, the State arg ues that Plaintiffs’ l e tter d id not identify any violations o f the NVRA occurring within 120 day s of a federal election, and therefore Plaintiffs were required to g ive the State 90 day s to c u r e , r a t h er than the 20 day s Plaintiffs actually g ave. Second, the State arg ues that Plaintiffs did not qualify for the statute’s e x ception to the notice r equirement b e c ause Plaintiffs did not plausibly alleg e in the complaint, which Plaintiffs filed within 30 d a y s of a federal e lection, that the State was currently

violating Section 7. B o th arg uments rest on the same premise—that there was no reason to believe that the violations Plaintiffs id e n t i fied in their December 2011 field investig ations were s t i l l occurring in May 2012, when Plaintiffs sent their letter, and in J une 2012, when Plaintiffs filed their complaint. W e disag ree w ith the premise.

I n their May 10, 2012 letter, Plaintiffs wrote that Nevada

was e ng ag ed in sy stematic and ong oing violations of Section 7 of the NVRA. S o m e of their e vidence came from their December 2011 field investig ations. Plaintiffs provided written notice to Nevada under p arag r aph (1) of § 20510(b) about six months a f

t e r completing their field investig ations. Their May 1 0 notice was prov i d e d “within 120 day s beforeN A T ’ L C O U N C I L O F L A R A

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the date of the nex t election for F ederal office,” which was to take place o n J une 12, 2012. I f Plaintiffs had provided notice of discrete violations that had occurred more than 1 20 day s before J une 12, but h ad not o ccurred thereafter, they would have had to w ait 90 day s from the date o f their notice before bring ing suit. B ut because they p rovided notice within the 120-day period before J une 12 and alleg ed in their notice that the violations were o ng oing

, they needed to wait only 20 day s before bring ing suit.

I n their J u ne 11, 2012 complaint, Plaintiffs alleg ed that the violations they d escribed in their letter had not been remedied. The complaint was filed one day before a federal election. As in their letter, Plaintiffs pointed to the December 2011 field investig ations and alle g e d that the sy stematic violations they discovered in December were ong oing

. B ecause Plaintiffs plausibly all e ge d that the State was violating the statute w ithin 30 day s of a federal e lection, they

were n ot required to g ive the State any pr i o r n o t i c e of, o r opportunity

to cure, the violations alleg ed in the complaint.

Th e d i strict judg e faulted Plaintiffs for not providing

n otice when they completed their field investig atio n s i n December 2011. B ecause Plaintiffs had not provided notice when they discovered the alleg e d v iolations, he r efused to credit the alleg ations in the complaint that the violations were ong oing as of the date of Plaintiffs’ May 10 notice letter o r a s of the date of the J u ne 1 1 complaint. He wrote, “I f Plaintiffs would h ave sent notice to [ Nevada’s S e c retary of State] immediately after the December investig ation, then Plaintiffs could h ave reasonably arg ued that the violations were still
ong oing as of the notice.” That is, because Plaintiffs did not send their n otice letter in December, a s soon as they discovered the alleg ed violati o ns throug h their fieldN A T ’ L C O U N C I L O F L A R A

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investig ations, the d i s t rict judg e refused to believe that they

w e r e ong o ing violations that continued to occur in May a n d J une. Nevada arg ues that the d i s t r i c t judg e was correct in refusing to believe that Plaintiffs had properly alleg ed that the violations, d iscovered in D ecember, continued in May and J une.

The district judg e erred in concluding that the alleg ed violations were not plausibly alleg ed to be ong oing during the 120-day and 30-day p eriods before the J une 12 election. F o r

ex a mple, the complaint alle ge s that it w as “standard procedure” for office staff not to ask assistance clients if they wished to r eg ister to vote. The complaint alleg es that in e ach office visited by the investig ators, “the clerks stated that voter reg istration applications are provided only to clients w ho check ‘Yes’ in response to the question whether they ‘would

. . . like to reg ister to vote h ere today ,’ despite the NVRA

. . . requirement that all persons eng ag ing in covered transactions receive a voter reg istration form appl i c ation unless they specifically decline, i n writing

, to receive such an application.” The complaint further alleg es that two of the public a ssistance offices visited “did no t have any voter reg istration applications to provide to clients who eng ag ed in transactions covered by the NVRA.” One of the offices had
not had vote r reg istration application forms for over a y ear. Anot h e r office had not had the forms for over two y ears. F inally

, the complaint alleg ed, “The violations o f the NVRA described in the notice letter have not been remedied.”

I t is impossible to read these alleg ations and to conclude that there is no r easonable possibility that some of the violations Plaintiffs uncovered in D ecember were continuing

as of the dates of the notice and the complaint. I ndeed, g iven the e x tent and n ature of the v i olations discovered inN A T ’ L C O U N C I L O F L A R A

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Decembe r i t is likely

, not merely plausible, that some, perhaps all, of the v iolations were continuing in May a nd J une. S e e Levitt v. Y

elp! Inc.
, 765 F .3d 1123, 1134–35 (9th Cir. 2014) (stating that to survive a motion to dismiss for failure to state a claim following the Supreme Court’s decisions in Ashcroft v. Iqbal

, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. T

w o m b l y , 550 U.S. 544 (2007), Plaintiffs’ factual a lleg ations “must

. . . sug g est that the claim has at least a plausible chance of success.”) (quoting In re Century A l u m inum Co. Sec. Litig.
, 729 F .3d 1104, 1107 (9th C i r. 2013)); Somers v. Apple, Inc.
, 7 29 F .3d 953, 95 9 ( 9 t h C ir. 2013) (“A c laim is facially pla u s ible ‘when the p laintiff pleads f actual conten t that allows the court to d raw the reasonable inference that the def e n d ant is liable for the misconduct alleg ed.’” (quoting Iqbal , 556 U.S. at 678)).

Perhaps recog niz ing the w eakness of the justification advanced b y t he district judg e, the State tries to justify the dismissal on a different g round. The State arg ues that it is not enoug h for a notice or complaint to d escribe an o ng oing violation and then to use the date of the notice or complaint

as the relevant date under the statute’s notice provision. The State a rg ues in its brief to us that “a discrete violation within the applicable time period must be alleg ed.” The State does
not define what it means by “discrete violation,” but we infer that the State means a v iolation that has been actually observed during the a

pplicable time period. W e disag ree with the State.

A plaintiff can satisfy the NVRA’s notice p rovision b y plausibly alleg ing that a ong o ing

, sy stematic violation is occurring at the time the notice is sent or, if no notice is sent, wh e n the complaint is filed within 30 day s of a federal election. Neither the notic e nor the complaint needs toN A T ’ L C O U N C I L O F L A R A

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specify that the violation h as been actually observed, and that there is thus a “discrete violation,” during the 120-day or 30- day period. I t is e noug h that the notice lette r and the complaint plausibly alleg e the e x istence of an ongo i ng

v i o lation within the appropriate time period, whether or n o t it was “discrete” d

uring t h e p e r iod. See, e.g. , Scott v

. Schedler

, 771 F .3d 8 31, 83 4
, 8 4 0 (5th Cir. 2014) (leaving “intact the district court’s determination that the NAACP has complied with the notice r equi r e ment” by alleg ing “sy stemati c and ong oing violations of several provisions o f Section 7 of the NVRA”); see also Arcia v. Florida Sec’y of State
, 772 F .3d 1335, 1339 (11th Cir. 2014) (remanding to the distr i ct court to g rant summary judg ment to plaintiffs challeng ing a state’s prog ram tha t sy stematically removed suspected non-citiz ens from the v oter rolls within 90 day s o f

a federal election); Valdez v

. Squier
, 676 F .3d 935, 939 (10th Cir. 2 012) (upholding the g rant of summary judg ment for a plaintiff who a lleg ed that a state’s p olicy c a used “ ong oing violations” of the NVRA).

The State arg ues that it would frustrate the purpose of the notice p rovision to permit ag g r ieved persons to file complaints alleg ing ong oing

, sy stematic vi olations of the NVRA within 120 or 30 day s o f a federal election when they knew about the violations e arlier. The State, like the district judg e, is concerned t h a t a p laintiff can avoid g iving state officials n o tice and an adequate opportunity to cure simply b y waiting to p rovide notice until 1 20 or 30 day s before a federal election. To some deg ree, w e are sy m p a thetic with this

concern. I f plaintiffs discovered NVRA violati o n s i n December and waited six months to file suit, finally doing so

on the d ay before the primary election, it is reasonable to suspect that Plaintiffs may have been seeking not o nly the long -term benefit o f c o rrection of the NVRA violations butN A T ’ L C O U N C I L O F L A R A

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also the short-term benefit o f the publicity obtained from filing suit the day before v oters g o to the polls. This concern, however, d oes not alter the meaning and operati o n of the NVRA.

W e have two responses. Fi r s t , w e cannot r e write the
statute to avoid this consequence, for the stat u t e e x pressly permits it. See Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A.
, 530 U.S. 1
, 6 ( 2 000) (“[ W ] hen the statute’s lang uag e is plain, the sole function of the courts—at le a st where the d isposition required by the tex t is not absurd—is to enforce it according to its terms

. ” ( internal quotation marks omitt e d ) ) ; A m

. Tobacco Co. v. Patterson
, 456 U.S. 63, 68 (1982) (“[ W ] e ass u m e t hat the leg islative
purpose is ex pressed by the ordina ry m e a ning of the words used.” (internal quotation marks omitted)). Second, the temptation to eng ag e in strateg ic delay may n ot be as g reat a s the State and the district judg e appear to believe. Plaintiffs who seek c ompliance with Section 7 have g ood reason to air their concerns long before the 120- and 30-day clocks beg in
to run. Such plaintiffs are interes t e d i n max imiz ing voter reg istration. I t hardly serves p laintiffs’ voter reg istration
purpose to d elay notificati o n o f the State, f or the sooner the State comes in t o compliance, the more voters will be
reg ister e d. W aiting to file a complaint threatens to f rustrate plaintiffs’ voter reg istration purpose, for a l ate filing diminishes the likelihood that t h ey will secure meaning f ul relief before voter reg istration closes.

C. L eave to Amend

W e hold, for the reasons g iven a bove, that Plaintiffs’ complaint satisfied b oth Article I I I a n d s tatutory standing

. However, a ssuming for the moment that the complaint wasN A T ’ L C O U N C I L O F L A R A

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deficient, the district judg e abused his discretion b y dismissing Plaintiffs’ complaint for lack of standing without
g iving Plaintiffs an opportunity to amend. A “district court may ex ercise its discretion to deny leave to amend due to ‘undue delay

, bad faith o r d i l a t ory motive on p art o f the movant, repeated failure to cure deficiencies by amendments previously allowed, undue p r e j udice to the opposing party

. . . , [ or] futility of amendment.’” Carvalho v. Equifax I nfo. Servs., LLC
, 629 F .3d 876, 892 (9th Cir. 2010) ( q uoting Foman
, 371 U

. S

. at 182). However, “[ a] simple denial o f leave to amend without a ny ex planation by

the district court is subject to reversal.” Eminence Capital

, 316 F .3d a t 1052. “Such a judg ment is ‘not an e x er c i s e o f discretion; it is merely abuse o f that discretion

. . . .’” Id

. ( q u oting F o man , 371 U.S. at 182).

D. Reassig nment

Plaintiffs have asked, in the event we reverse and remand, that we assig n this case to a differen t district judg e. W e reassig n o nly in “‘rare and ex traordi n a r y circumstances,’” Krechman v. Cnty. of Riverside

, 7 23 F .3d 1104, 1 1 1 2 ( 9 t h Cir. 2013) ( quoting U

n i t e d Nat’l I

ns. Co. v. R&

D Latex Corp.
, 242 F .3d 1102, 1118 (9th Cir. 2001))

, such as when the distr i c t court “ h as ex hibited personal bias,” In re E llis

, 356 F .3d 1 1 98, 1211 (9th Cir. 2 004) (en ba n c ) ( q uoting United Nat’l Ins. Co.
, 242 F .3d at 1118), or when “reassig n m e n t is a dvisable to maintain the appearance o f justice.” U

n i t e d States v

. Kyle

, 734 F .3d 956, 966–67 (9th Cir. 2013) (quoting U

nited S t a t es v. Lyons
, 472 F .3d 1055, 1071 (9th Cir. 2006)).

W e reluctantly

conclude that we must reassig n this case. The errors made by the district judg e may sug g est to aN A T ’ L C O U N C I L O F L A R A

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r easonable outside observer that reassig nment “to maintai n the appearance of justice” is necessary

. The reaso n s for our conclusion are apparent from what we have writt en above, and we review them only briefly here. The judg e sua sponte soug h t to limit the e ffectiveness of r epresentation by insisting unreasonably that only

two of Plaintiffs’ chosen out-of-state attorney s be g iven pro hac v i c e s t a tus. See In re United States
, No. 1 4-70486, 2015 W L 3 938190, at *8 (9th Cir. J u ne 29, 2015) (“At minimum, a court’s decision to deny pro hac vice admis s i o n must be based on criteria reasonably r elated
to prom o ting the orderly administration of justice, or some other leg itimate policy of the courts.” (c i t ations o mitted)). The judg e did this d espite the p l e a o f Plaintiffs’ Nevada l a wy er that he needed the ex pert assistance of out-of-sta t e counsel who specializ e i n NVRA litig ation, and over the objection of o n e o f the would-be out-of-state counsel that the judg e’s ruling would prevent depositions from being taken in Nevada by associates in his firm. The judg e’ s a c t i ons came very shortly after the Ninth Circuit h ad d eemed “troubling ” his comments reg arding out-of-state counsel in another case involving a different Nevada ag ency

. Henry A. v. W ilden

, 678 F

. 3d 991, 1012 (9th Cir. 2012). B ased on this a nd other cases, a reasonable observer could conclude that the judg e’s feeling s ag ainst out-of-stat e attorney s are both wellestablished and inappropriately strong

. S ee Great Basin Res. W atch v. United States Dep’t of t h e Interior
, No. 3 :13-CV00078-RCJ
, 2014 W L 3697107, at *3 (D. Nev. J uly 23, 2 014) (this same judg e ex pressly sta t ed he would “presume[ ] that the out-of-state lawy ers are u n w i l ling to obey the ethical strictures that g overn all other attorney s”). F urther, the judg e

sua sponte and wi t

h o u t n otice dismissed Plaintiffs’ case based

on a motion the State had previously withdrawn, pursuant to

a joint stipulati o n by the parties. Still further, the judg e misread the complaint when he concluded that Plaintiffs h adN A T ’ L C O U N C I L O F L A R A

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failed to alleg e that they had chang e d their behavior a nd h ad thus suffered no injury

, when Plaintiffs had alleg ed that they had e x p e n ded additional resources on voter reg istration as a result of the State’s violation of Section 7

. F inally

, the judg e dis m i s sed the complaint w ithout leave to amend despite Plaintiffs’ ex plicit request that they be allowed to amend their complaint if the judg e found its alleg ations insufficient.

Conclusion

Plaintiffs have satisfied the stand ing requirement o f Article I I I by p lausibly alleg ing they have suffered injury in fact fairly t r a c eable to the State’s noncompliance with Section 7 of the NVRA. Plaintiffs h ave also s a t i sfied the statute’s notice requirement in two way s. F irst, they notified the State that violations were o ccurring 120 day s b e fore an electio n , thus authoriz ing them to f ile suit after waiting 20 day s from the date o f their notificat i o n. Second, they plausibly alleg ed that the State was violating Section 7 within 30 day s of a federal e lection, thus permitting them to file suit without first notify ing the State (even thoug h Plaintiffs in fact had done so). We reverse the district court’s dismissal of the complaint for lack of constitu t ional and statutory standing and remand the matter for further proceeding s c onsistent with this opinion. W e deny as moot Plaintiffs’ motion for judicial notice. W e instruct the Chief J udg e of the District o f Nevada to assig n the case to a different district judg e.

REVERSED, REMANDED and REASSIG NED.